SAMOA CRIMES ORDINANCE 1961

Transcription

1 SAMOA CRIMES ORDINANCE 1961 Arrangement of Provisions PART I PRELIMINARY 1. Short title and commencement 2. Interpretation PART IA JURISDICTION 3. Application 4. Repealed 5. Repealed 6. Repealed 7. Offences not to be punishable except under the law of Samoa 8. Offence under more than one enactment 8A &8B.Repealed PART II MATTERS OF JUSTIFICATION OR EXCUSE 9. General rule as to justification 10. Ignorance of law 11. Repealed 12. Repealed 13. Insanity 14. Compulsion 15. Self defence against unprovoked assault 16. Self defence against provoked assault 17. Defence of dwellinghouse 18. Defence of land or building 19. Defence of person under protection 20. Excess of force 21. Consent to death 22. Other enactments not affected PART III PARTIES TO THE COMMISSION OF OFFENCES 23. Parties to offences 24. Husband and wife conspiring 25. Offence committed other than offence intended 26. Accessory after the fact 27. Attempts PART IV CRIMES AGAINST PUBLIC ORDER 28. Treason 29. Seditious offences 30. Unlawful assembly 31. Riot 32. Forcible entry 33. Affrays 34. Unlawful intimidation 34A.Threatening, etc., words or behaviour to member or officer PART V

2 3 Crimes Ordinance 1961 CRIMES AFFECTING ADMINISTRATION OF LAW AND JUSTICE AND PUBLIC ADMINISTRATION 35. Official corruption 36. Perjury 37. Fabricating evidence 38. Conspiring to defeat justice 39. Breaking prison 40. Escape 41. Rescue PART VI CRIMES AGAINST RELIGION, MORALITY AND PUBLIC WELFARE Division 1 Crime against Religion 42. Blasphemous libel Division 2 Crimes against Morality and Decency 43. Distribution or exhibition of indecent matter 44. Indecent act in public place 45. Indecent act with intent to insult or offend Division 3 Sexual Crimes 46. Sexual intercourse defined 47. Rape 48. Attempt to commit rape 49. Incest 50. Sexual intercourse by man with young related girl living in his family 51. Sexual intercourse with girl under Indecency with girl under Sexual intercourse or indecency with girl between 12 and Indecent assault on woman or girl 55. Conspiracy to induce sexual intercourse 56. Inducing sexual intercourse under pretence of marriage 57. Sexual intercourse with idiot or imbecile woman or girl 58. Adultery by married persons 58A.Adultery with married woman 58B.Indecent act between woman and girl 58C.Indecency between man and boy 58D.Indecency between males 58E.Sodomy 58F.Bestiality 58G.Attempts to commit sodomy or bestiality 58H. Indecency with animal. Division 4 Crimes against Public Welfare 58I. Criminal nuisance 58J. Keeping place of resort for homosexual acts 58K.Brothel-keeping 58L.Living on earnings of prostitution 58M.Procuring sexual intercourse 58N.Personating a female 58O.Misconduct in respect of human remains 58P.Repealed PART VII CRIMES AGAINST PERSON AND REPUTATION 59. Homicide 60. Killing of a child 61. Homicide, culpable and not culpable 62. Death must be within a year and a day 63. Murder

3 64. Further definition of murder 65. Manslaughter 66. Penalty for murder 67. Penalty for manslaughter 68. Attempted 69. Conspiracy and inciting to murder 70. Hastening death 71. Indirect cause of death 72. Infanticide 73. Killing unborn child 73A.Procuring abortion 73B.Female procuring her own miscarriage 73C.Supplying means of procuring abortion 73D.Effectiveness of means used immaterial 74. Concealing dead body of a child 74A.Bigamy defined 74B.Punishment of bigamy 74C.Feigned marriage 75. Counseling suicide 76. Duty to provide the necessaries of life 77. Duty of parent or guardian to provide necessaries 78. Common assault 79. Grievous bodily harm 80. Actual bodily harm 81. Acts or omissions causing bodily harm 82. Threats to kill or do bodily harm 83. Abduction of woman or girl 83A.Kidnapping 83B.Abduction of child under Defamatory libel PART VIII CRIMES AGAINST RIGHTS OF PROPERTY 85. Theft defined 86. Punishment of theft 87. Ineffectual defences to charge of theft 88. Extended definition of theft 89. Obtaining by false pretence Crimes Ordinance Receiving stolen property 91. Conversion of vehicles or vessels, etc. 92. Robbery 93. Breach of trust 94. Menaces 95. Witchcraft 96. Obtaining credit by fraud 97. Conspiracy to defraud 98. Falsifying accounts relating to public funds 99. False accounting by employee 100. False statement by public officer 101. Accusation of criminal offences 102. Burglary 103. Unlawful entry of building by night 104. Intimidation by breaking house or discharge of firearms 105. Being armed with intent to commit a crime 106. Having in possession instruments of housebreaking, or being disguised to commit a crime 107. Forgery 108. Uttering forged documents 109. Making counterfeit coin 110. Impairing coin 111. Uttering counterfeit coin 112. Arson 113. Wilful damage 114. Attempt to commit or procure commission of offence 115. Accessory after the fact to crime PART IX LEGISLATION SUPERSEDED AND SAVINGS 116. Repeal and Savings

4 5 Crimes Ordinance 1961 PART X ARRESTS PENALTIES AND ENFORCEMENT Repealed Repealed Schedule PART XI CRIMES ORDINANCE No.13 AN ORDINANCE to consolidate and amend Part V of the Samoa Act 1921 (NZ) and certain other enactments relating to crimes and other offences. [Assent date: 16 December 1961] [Commencement date 1 January 1962] 1. Short title and commencement (1) This Ordinance may be cited as the Crimes Ordinance (2) This Ordinance comes into force on 1 January Interpretation In this Ordinance, unless the context otherwise requires: building means any building, erection or structure of any kind, whether permanent or temporary, and includes any dwelling, fale, warehouse, shop, office, store, caravan or other premises of any kind; constable includes any member of the Police Service; Court includes both the Supreme Court and the District Court of Samoa; crime means an offence for which anyone can be punished under this Ordinance; day or daytime means the interval between 6 o clock in the morning of any day and 8 o'clock at night of the same day; enactment includes the Constitution of Samoa and any Act, Ordinance, Regulation or Order; night or night time means the interval between 8 o clock at night and 6 o'clock in the following morning;

5 Crimes Ordinance offence means any act of omission for which anyone can be punished under this Ordinance or under any other enactment; public place means: (a) any road; (b) any place of public resort open to or used by the public (whether on payment of money or otherwise); (c) any wharf or jetty; (d) any passenger ship or boat or vessel plying for hire at a wharf or jetty or within one mile of the shore; (e) any licensed public vehicle plying for hire; (f) any church or other building where Divine Service is being publicly held; (g) any hall or room in which any public entertainment is being held; (h) any market place; ship means every description of vessel used in navigation, however propelled; and includes any schooner, cutter, launch, yacht, boat, barge, lighter, dinghy, paopao, raft or little vessel; territorial waters in relation to any country other than Samoa means such part of the sea adjacent to the coast of that country as is within the territorial sovereignty of that country; valuable security means any document which constitutes a title to or is evidence of title to any property or proprietary right of any kind whatever; and includes any negotiable instrument, bill of exchange, cheque or promissory note; Samoa means the islands of Upolu, Savaii, Manono and Apolima in the South Pacific Ocean together with all other islands adjacent thereto and lying between the 13 and 15 south latitude and the 171 and 173 longitude west of Greenwich; Samoa includes all waters within the outer limits of the territorial sea of Samoa (as defined in the Maritime Zones Act 1999) and the exclusive economic zone of Samoa (as defined in the Maritime Zones Act 1999). PART I JURISDICTION

6 6 Crimes Ordinance Application (1) This Ordinance applies to all offences for which the offender may be proceeded against and tried in Samoa. (2) This Ordinance applies to any act or omission or event which occurs in Samoa or any other place. (3) The Court of Appeal and the Supreme Court and the District Court shall have jurisdiction to hear and determine any matter for which this Ordinance or any other law provides such Court with jurisdiction irrespective of whether any act or omission or event occurs in Samoa or any other place (Repealed by the Crimes (Extra-Territorial Jurisdiction) Amendment Act 2003 No.16) 7. Offences not to be punishable except under the law of Samoa - No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom: PROVIDED THAT nothing in this section limits or affects the power or authority of the Legislative Assembly or of any Court to punish for contempt. 8. Offence under more than one enactment (1) Where an act or omission constitutes an offence under this Ordinance and under any other Ordinance, the offender may be prosecuted and punished either under this Ordinance or under that other Ordinance. (2) Where an act or omission constitutes an offence under 2 or more Ordinances other than this Ordinance, the offender may be prosecuted and punished under any one of those Ordinances. (3) Where an act or omission constitutes an offence under 2 or more provisions of this Ordinance or of any other Ordinance, the offender may be prosecuted under any one of those provisions. (4) No one is liable to be punished twice for the same offence. 8A & 8B. (Repealed by section 177 (1) of the Criminal Procedure Act 1972) PART II MATTERS OF JUSTIFICATION OR EXCUSE

7 Crimes Ordinance General rule as to justification All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Ordinance or under any other enactment, except so far as they are altered by or are inconsistent with this Ordinance or any other enactment. 10. Ignorance of law The fact that an offender is ignorant of the law is not an excuse for any offence committed by that person (Repealed by section 25 of Young Offenders Act 2007) 13. Insanity (1) Everyone shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved. (2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render the person incapable: (a) of understanding the nature and quality of the act or omission; or (b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong. (3) Insanity before or after the time when the person did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when the person did or omitted the act, in such a condition of mind as to render him or her irresponsible for the act or omission. (4) The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence shall not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence. 14. Compulsion (1) Subject to this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if the person believes that the threats will be carried out and if he

8 8 Crimes Ordinance 1961 or she is not a party to any association or conspiracy whereby the person is subject to compulsion, except where the offence committed is treason, murder, attempted murder, aiding or abetting rape, abduction, robbery, causing grievous bodily harm and arson. (2) Where a married woman commits an offence, the fact that her husband was present at the commission of it does not of itself raise the presumption of compulsion. 15. Self defence against unprovoked assault (1) Everyone unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force, if the force he or she uses: (a) is not meant to cause death or grievous bodily harm; and (b) is no more than is necessary for the purpose of self defence. (2) Everyone unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force by force although in so doing he or she causes death or grievous bodily harm, if: (a) he or she causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purpose; and (b) he or she believes, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm. 16. Self defence against provoked assault Everyone who has assaulted another without justification, or has provoked an assault from that other by any blows, words or gestures, may nevertheless justify force used after the assault if: (a) he or she used the force under reasonable apprehension of death or grievous bodily harm from the violence of the party first assaulted or provoked and in the belief, on reasonable grounds that it was necessary for his or her own preservation from death or grievous bodily harm; and

9 Crimes Ordinance (b) he or she did not begin the assault with intent to kill or do grievous bodily harm and did not endeavour, at any time before the necessity for preserving himself or herself arose, to kill or do grievous bodily harm; and (c) before the force was used, he or she declined further conflict and quitted or retreated from it as far as was practicable. 17. Defence of dwellinghouse Everyone in peaceable possession of a dwellinghouse, and everyone lawfully assisting that person or acting by his or her authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of the dwellinghouse by any person if the person believes, on reasonable grounds, that there is no lawful justification for the breaking and entering. 18. Defence of land or building (1) Everyone in peaceable possession of any land or building, and everyone lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom. (2) If the last mentioned person resists the attempt to prevent his or her entry or to remove him or her, that person shall be deemed to commit an assault without justification. 19. Defence of person under protection Everyone is justified in using force, in defence of the person or any one under that person s protection, against an assault, if he or she uses no more force than is necessary to prevent the assault or the repetition of it: PROVIDED THAT this section does not justify the wilful infliction of any hurt or mischief disproportionate to the assault that it was intended to prevent. 20. Excess of force Everyone authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess. 21. Consent to death No one has a right to consent to the infliction of death upon himself or herself, and, if any person is

10 10 Crimes Ordinance 1961 killed, the fact that he or she gave any such consent shall not affect the criminal responsibility of any person who is a party to the killing. 22. Other enactments not affected Nothing in this Ordinance shall take away or diminish any authority given by any other enactment to arrest, detain, or put any restraint on any person. PART III PARTIES TO THE COMMISSION OF OFFENCES 23. Parties to offences (1) Everyone is a party to and guilty of an offence who: (a) actually commits the offence; or (b) does or omits an act for the purpose of aiding any person to commit the offence; or (c) abets any person in the commission of the offence; or (d) incites, counsels, or procures any person to commit the offence. (2) Where 2 or more persons form a common intention to prosecute any on lawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was or ought to have been known to be a probable consequence of the prosecution of the common purpose. 24. Husband and wife conspiring Where a person is charged with any conspiracy or with being a party to any conspiracy, the fact that any 2 of the alleged conspirators or parties to the conspiracy are husband and wife shall not of itself be a defence to the charge. 25. Offence committed other than offence intended (1) Everyone who incites, counsels, or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was incited, counselled, or procured. (2) Everyone who incites, counsels, or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such inciting, counselling, or

11 Crimes Ordinance procuring, and which the first-mentioned person knows or ought to have known to be likely to be committed in consequence thereof. 26. Accessory after the fact (1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against the person, in order to enable him or her to escape after arrest or to avoid arrest or conviction. (2) No married person whose spouse has been a party to an offence shall become an accessory after the fact to that offence by doing any act to which this section applies in order to enable the spouse, or the spouse and any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction. 27. Attempts (1) Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing the object, is guilty of an attempt to commit the offence intended, whether under the circumstances it was possible to commit the offence or not. (2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law. (3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit an offence. PART IV CRIMES AGAINST PUBLIC ORDER 28. Treason Every citizen of Samoa is guilty of treason, and shall upon conviction be imprisoned for life, who: (a) kills, wounds, imprisons, or causes grievous bodily harm to the Head of State; or (b) levies war or conspires to levy war against the State of Samoa; or

12 12 Crimes Ordinance 1961 (c) uses force for the purpose of overthrowing the Government of Samoa; or (d) assists by any means whatever any public enemy at war with the State of Samoa. 29. Seditious offences (1) Everyone is liable to imprisonment for a term not exceeding 2 years who speaks any seditious words or publishes a seditious libel, or is a party to a seditious conspiracy. (2) Seditious words are words expressive of a seditious intention. (3) A seditious libel is a libel expressive of a seditious intention. (4) A seditious conspiracy is an agreement between 2 or more persons to carry into execution a seditious intention. (5) A seditious intention is an intention to excite disaffection against the Parliament or Government of Samoa, or to excite such hostility or ill will between different classes of the inhabitants of Samoa as may be injurious to the public welfare, or to incite, encourage, or procure lawlessness, violence, or disorder in Samoa, or to procure otherwise than by lawful means the alteration of any matter affecting the laws, government, or Constitution of Samoa. 30. Unlawful assembly (1) Every member of an unlawful assembly is liable to imprisonment for one year. (2) An unlawful assembly is an assembly of 3 or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled as to cause persons in the neighbourhood of such an assembly to fear, on reasonable grounds, that the persons so assembled will disturb the peace tumultuously, or will, by such assembly, needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously. (3) Persons lawfully assembled may become an unlawful assembly if they, with a common purpose, conduct themselves in such a manner that their assembling would have been unlawful if they had assembled in that manner for that purpose. (4) An assembly of 3 or more persons for the purpose of protecting the house of any one of their number against persons

13 Crimes Ordinance threatening to break and enter such house in order to commit any offence therein is not unlawful. 31. Riot (1) Everyone who takes part in a riot is liable to imprisonment for a term not exceeding 2 years. (2) A riot is an unlawful assembly that has begun to disturb the peace tumultuously. 32. Forcible entry Everyone is liable to imprisonment for a term not exceeding 6 months who, by force or threats of force, enters on land then in the actual and peaceful possession of another for the purpose of taking possession thereof, whether the person who so enters is entitled to the possession thereof or not. 33. Affrays (1) Everyone who, without lawful justification or excuse, takes part in an affray is liable to imprisonment for a term not exceeding 1 year. (2) An affray is the act of fighting in a public highway or in any other public place. 34. Unlawful intimidation Every person commits an offence and is liable to imprisonment for a term not exceeding one year or to a fine of 2 penalty units who: (a) imposes or attempts to impose or authorises or directs the imposition or attempted imposition upon any other person (whether in respect of a particular person or generally) of any punishment, fine, or penalty or payment in money or goods for having disobeyed any prohibition imposed by any person or body of persons against the doing or abstaining from doing any act which such other person has a legal right to do or abstain from doing; or (b) with a view to compel any other person to do or to abstain from doing any act which that person has a legal right to do or abstain from doing (i) uses violence to or by words or acts intimidates such other person or damages or threatens to damage his or her property; or (ii) follows such other person about from place to place or in or along any public place; or

14 14 Crimes Ordinance 1961 (iii) watches or besets any house, shop, or other place or the approach thereto where such other person or any person whosoever resides or works or carries on business or happens to be. 34A. Threatening, etc., words or behaviour to Member or officer (1) Everyone is liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding 2 penalty units who uses any threatening, abusive or insulting words or behaviour towards or in respect of any Member of Parliament. (2) Everyone is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding 1 penalty unit who uses any threatening, abusive or insulting words or behaviour towards or in respect of any officer of the Public Service while he or she is performing any official duty or exercising any official power. PART V CRIMES AFFECTING ADMINISTRATION OF LAW AND JUSTICE AND PUBLIC ADMINISTRATION 35. Official corruption Everyone commits the offence of official corruption and is liable to imprisonment for a term not exceeding 5 years who: (a) being the holder of any office, whether judicial or otherwise, in the service of the Independent State of Samoa, corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself, herself or any other person any bribe, that is to say, any money or valuable consideration whatever, on account of anything done or to be afterwards done by that person in an official capacity; or (b) corruptly gives or offers to any person holding any such office or to any other person any such bribe as aforesaid on account of any such act. 36. Perjury (1) Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his or her evidence upon oath or affirmation,

15 Crimes Ordinance whether such evidence is given in open Court or by affidavit or otherwise, such assertion being known to the witness to be false. (2) Every proceeding is judicial within the meaning of this section which is held before any Court, or before any judicial officer or other person having power to take evidence on oath or affirmation. (3) No one shall be convicted of perjury on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particularly by evidence implicating the accused. (4) Everyone who commits perjury is liable to imprisonment for a term not exceeding 5 years. 37. Fabricating evidence Everyone is liable to imprisonment for a term not exceeding 3 years who, with intent to mislead any Court of Justice or any judicial officer in the exercise of his or her functions as such, fabricates evidence by any means other than perjury. 38. Conspiring to defeat justice Everyone is liable to imprisonment for a term not exceeding 3 years who conspires or attempts to obstruct, prevent, pervert, or defeat the course of justice in any cause or matter, civil or criminal. 39. Breaking prison Everyone is liable to imprisonment for a term not exceeding 5 years who by force or violence breaks any prison with intent to set at liberty himself, herself or any other person detained therein. 40. Escape (1) Everyone is liable to imprisonment for a term not exceeding 2 years who, being in lawful custody, whether in a prison or elsewhere, escapes therefrom. (2) For the purposes of this and the next succeeding section lawful custody means the detention of a person by due process of law, whether the person be under arrest, police or gaol escort, serving a term of imprisonment or otherwise; custody under an irregular warrant or other irregular process shall be deemed to be lawful. 41. Rescue Everyone is liable to imprisonment for a term not exceeding 2 years who rescues any person from lawful

16 16 Crimes Ordinance 1961 custody, whether in a prison or elsewhere, or who assists any person to escape from such custody, or who aids, harbours, conceals, or shelters any person who has escaped from such custody, knowing that person to have so escaped. PART VI CRIMES AGAINST RELIGION, MORALITY AND PUBLIC WELFARE Division 1 Crimes against Religion 42. Blasphemous libel (1) Everyone is liable to imprisonment for a term not exceeding one year who publishes any blasphemous libel. (2) Whether any particular published matter is or is not a blasphemous libel is a question of fact. (3) It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject. (4) No one shall be prosecuted for an offence against this section without the leave in writing of the Attorney-General, who before giving leave may make such enquiries as the Attorney- General thinks fit. Division 2 Crimes against Morality and Decency 43. Distribution or exhibition of indecent matter (1) Everyone is liable to imprisonment for a term not exceeding 2 years who, without lawful justification or excuse: (a) sells, expose for sale, or otherwise distributes to the public any indecent model or object; or (b) exhibits or presents in or within view of any place to which the public have or are permitted to have access any indecent model or object or indecent show or performance; or (c) exhibits or presents in the presence of any person in consideration or expectation of any payment, or otherwise for gain, any indecent show or performance.

17 Crimes Ordinance (2) It is a defence to a charge under this section to prove that the public good was served by the acts alleged to have been done. (3) It is a question of law whether the sale, exposure for sale, distribution, exhibition or presentation might in the circumstances serve the public good, and whether there is evidence of excess beyond what the public good requires; but it is a question of fact whether or not the acts complained of did so serve the public good and whether or not there was such excess. (4) It is no defence that the person charged did not know that the model, object, show or performance to which the charge relates was indecent, unless that person also satisfies the Court: (a) that he or she had no reasonable opportunity of knowing it; and (b) that in the circumstances his or her ignorance was excusable. (5) No one shall be prosecuted for an offence against this section without the leave in writing of the Attorney-General, who before giving leave may make such inquiries as the Attorney- General thinks fit. (6) Nothing in this section applies to any document or matter to which the Indecent Publications Ordinance 1960 relates, whether the document or matter is indecent within the meaning of that Ordinance or not. 44. Indecent act in public place (1) Everyone is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any public place, or within view of any such place. (2) It is a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed. 45. Indecent act with intent to insult or offend Everyone is liable to imprisonment for a term not exceeding 2 years who, with intent to insult or offend any person, does any indecent act in any place. Division 3 Sexual Crimes 46. Sexual intercourse defined For the purposes of this Part, sexual intercourse is complete upon penetration; and there

18 18 Crimes Ordinance 1961 shall be no presumption of law that any person is by reason of his or her age incapable of such intercourse. 47. Rape (1) Rape is the act of a male person having sexual intercourse with a woman or girl: (a) without her consent freely and voluntary given; or (b) with consent extorted by fear or bodily harm or by threats; or (c) with consent extorted by fear, on reasonable grounds, that the refusal of consent would result in the death of or grievous bodily injury to a third person; or (d) with consent obtained by personating her husband; or (e) with consent obtained by a false and fraudulent representation as to the nature and quality of the act. (2) Everyone who commits rape is liable to imprisonment for life. (3) Despite subsection (1), no man shall be convicted of rape in respect of his intercourse with his wife, unless at the time of the intercourse there was in force in respect of the marriage a decree of judicial separation or a separation order. 48. Attempt to commit rape Everyone who attempts to commit rape or assaults any person with intent to commit rape is liable to imprisonment for a term not exceeding 10 years. 49. Incest (1) In this section, child includes an illegitimate child; and grandchild has a corresponding meaning. (2) Incest is sexual intercourse between: (a) parent and child; or (b) brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or (c) grandparent and grandchild, where the person charged knows of the relationship between the parties. (3) Everyone of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 7 years.

19 Crimes Ordinance Sexual intercourse by man with young girl living in his family (1) Everyone is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any girl, not being his wife, who is under the age of 21 years and who, being his stepdaughter, foster daughter or ward, is at the time of the intercourse or attempted intercourse living with him as a member of his family. (2) It is no defence to a charge under this section that the girl consented. 51. Sexual intercourse with girl under 12 (1) Everyone who has sexual intercourse with any girl under the age of 12 years is liable to imprisonment for a term not exceeding 10 years. (2) Everyone who attempts to have sexual intercourse with any girl under the age of 12 years is liable to imprisonment for a term not exceeding 7 years. (3) It is no defence to a charge under this section that the girl consented, or that the person charged believed that she was of or over the age of 12 years. (4) The girl shall not be charged as a party to an offence committed upon or with her against this section. 52. Indecency with girl under 12 (1) Everyone is liable to imprisonment for a term not exceeding 7 years who: (a) indecently assaults any girl under the age of 12 years; or (b) being a male, does any indecent act with or upon any girl under the age of 12 years; or (c) being a male, induces or permits any girl under the age of 12 years to do any indecent act with or upon him. (2) It is no defence to a charge under this section that the girl consented, or that the person charged believed that she was of or over the age of 12 years. (3) The girl shall not be charged as a party to an offence committed upon or with her against this section. 53. Sexual intercourse or indecency with girl between 12 and 16 (1) Everyone is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse

20 20 Crimes Ordinance 1961 with any girl of or over the age of 12 years and under the age of 16 years, not being his wife. (2) Everyone is liable to imprisonment for a term not exceeding 7 years who: (a) indecently assaults any such girl; or (b) being a male, does any indecent act with or upon any such girl; or (c) being a male, induces or permits any such girl to do any indecent act with or upon him. (3) It is a defence to a charge under this section if the person charged proves that the girl consented and that he is younger than the girl: PROVIDED THAT proof of the said facts shall not be a defence if it is proved that such consent was obtained by a false and fraudulent representation as to the nature and quality of the act. (4) It is a defence to a charge under this section if the person charged proves that the girl consented, that he was under the age of 21 years at the time of the commission of the act, and that he had reasonable cause to believe, and did believe, that the girl was of or over the age of 16 years: PROVIDED THAT proof of the said facts shall not be a defence if it is proved that the consent was obtained by a false and fraudulent representation as to the nature and quality of the act. (5) Except as provided in this section, it is no defence to a charge under this section that the girl consented, or that the person charged believed that the girl was of over the age of 16 years. (6) The girl shall not be charged as a party to an offence committed upon or with her against this section. (7) No one shall be prosecuted for any offence against this section, except under subsection (2)(a), unless the prosecution is commenced within 12 months from the time when the offence was committed. 54. Indecent assault on woman or girl Everyone is liable to imprisonment for a term not exceeding 5 years who: (a) indecently assaults any woman or girl of or over the age of 16 years; or (b) does anything to any woman or girl of or over the age of 16 years, with her consent, which but for such consent would have been an indecent assault such consent being obtained by a false

21 Crimes Ordinance and fraudulent representation as to the nature and quality of the act. 55. Conspiracy to induce sexual intercourse Everyone is liable to imprisonment for a term not exceeding 5 years who conspires with any other person by a false representation or by other fraudulent means to induce any woman or girl to have sexual intercourse with any male who is not her husband. 56. Inducing sexual intercourse under pretence of marriage Everyone is liable to imprisonment for a term not exceeding 7 years who induces any woman or girl to have sexual intercourse with him by a wilfully false representation that they are married. 57. Sexual intercourse with idiot or imbecile woman or girl Everyone is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any woman or girl who is an idiot or an imbecile, if he knows or has good reason to believe that she is an idiot or imbecile. 58. Adultery by married persons A married person who commits adultery is liable to a fine not exceeding 1 penalty unit. 58A. Adultery with married woman A man who commits adultery with a woman he knows to be married is liable to a fine not exceeding 1 penalty unit. 58B. Indecent act between woman and girl (1) A woman of or over the age of 21 years is liable to imprisonment for a term not exceeding 5 years who: (a) does any indecent act with or upon any girl under the age of 16 years; or (b) induces or permits any girl under the age of 16 years to do any indecent act with or upon her. (2) The girl shall not be charged as a party of an offence committed with or upon her against this section. (3) It is no defence to a charge under this section that the girl consented.

22 22 Crimes Ordinance C. Indecency between man and boy (1) Everyone is liable to imprisonment for a term not exceeding 7 years who, being a male: (a) indecently assaults any boy under the age of 16 years; or (b) does any indecent act with or upon any boy under the age of 16 years; or (c) induces or permits any boy under the age of 16 years to do any indecent act with or upon him. (2) No person under the age of 21 years shall be charged with committing or being a party to an offence against this section. (3) It is no defence to a charge under this section that the boy consented. 58D. Indecency between males (1) Everyone is liable to imprisonment for a term not exceeding 5 years who, being a male: (a) indecently assaults any other male; or (b) does any indecent act with or upon any other male; or (c) induces or permits any other male to do any indecent act with or upon him. (2) No boy under the age of 16 years shall be charged with committing or being a party to an offence against subsection (1)(b) or (c), unless the other male was under the age of 21 years. (3) It is no defence to a charge under this section that the other party consented. 58E. Sodomy (1) Everyone who commits sodomy is liable: (a) where the act of sodomy is committed on a female, to imprisonment for a term not exceeding 7 years. (b) where the act of sodomy is committed on a male, and at the time of the act that male is under the age of 16 years and the offender is of or over the age of 21 years, to imprisonment for a term not exceeding 7 years. (c) in any other case, to imprisonment for a term not exceeding 5 years. (2)This offence is complete upon penetration. (3) Where sodomy is committed on any person under the age of 16 years he shall not be charged with being a party to that

23 Crimes Ordinance offence, but he may be charged with being a party to an offence against section 58D in any case to which that section is applicable. (4) It is no defence to a charge under this section that the other party consented. 58F. Bestiality (1) Everyone is liable to imprisonment for a term not exceeding 7 years who commits bestiality. (2) This offence is complete upon penetration. 58G. Attempts to commit sodomy or bestiality Everyone is liable to imprisonment for a term not exceeding 5 years who: (a) attempts to commit sodomy or bestiality; or (b) assaults any person with intent to commit sodomy. 58H. Indecency with animal Everyone is liable to imprisonment for a term not exceeding 3 years who commits any act of indecency with an animal. Division 4 Crimes against Public Welfare 58I. Criminal nuisance (1) Everyone commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he or she knew would endanger the lives, safety, or health of the public, or the life, safety or health of any individual. (2) Everyone who commits criminal nuisance is liable to imprisonment for a term not exceeding one year. 58J. Keeping place of resort for homosexual acts Everyone is liable to imprisonment for a term not exceeding 7 years who: (a) keeps or manages, or knowingly acts or assists in the management of, any premises used as a place of resort for the commission of indecent acts between males; or (b) being the tenant, lessee or occupier of any premises, knowingly permits the premises or any part thereof to be used as a place of resort for the commission of indecent acts between males; or

24 24 Crimes Ordinance 1961 (c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part thereof with the knowledge that the premises are to be used as a place of resort for the commission of indecent acts between males, or that some part thereof is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a place of resort for the commission of such acts as aforesaid. 58K. Brothel keeping (1) In this section, brothel means any house, room, set of rooms, or place of any kind whatever used for the purposes of prostitution, whether by one woman or more. (2) Everyone is liable to imprisonment for a term not exceeding 5 years who: (a) keeps or manages, or knowingly acts or assists in the management of, any brothel; or (b) being the tenant, lessee or occupier of any premises, knowingly permits the premises or any part thereof to be used as a brothel; or (c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the premises or any part thereof with the knowledge that the premises are to be used as a brothel, or that some part thereof is to be so used, or is wilfully a party to the continued use of the premises or any part thereof as a brothel. 58L. Living on earnings of prostitution Everyone is liable to imprisonment for a term not exceeding 3 years who knowingly: (a) lives wholly or in part on the earnings of the prostitution of another person; or (b) solicits for any prostitute, whether or not he receives any payment, reward or valuable consideration for so doing. 58M. Procuring sexual intercourse Everyone is liable to imprisonment for a term not exceeding 3 years who, for gain or reward, procures or agrees or offers to procure any woman or girl to have sexual intercourse with any male who is not her husband.

25 Crimes Ordinance N. Personating a female A male person is liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding 2 penalty units who, in a public place and with intent to deceive any other person as to his true sex, has on or about his person any article intended by him to represent that he is a female or in any other way is impersonating or representing himself to be a female. 58O. Misconduct in respect of human remains Everyone is liable to imprisonment for a term not exceeding 2 years who: (a) neglects to perform any duty imposed on the person by law or undertaken by the person with reference to the burial or cremation of any dead human body or human remains; or (b) improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not. 58P. (Repealed by section 26 (3) of the Gaming Act 1978) PART VII CRIMES AGAINST THE PERSON AND REPUTATION 59. Homicide Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever. 60. Killing of a child (1) A child becomes a human being within the meaning of this Ordinance when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not. (2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth. 61. Homicide, culpable and not culpable (1) Homicide may be either culpable or not culpable. (2) Homicide is culpable when it consists in the killing of any person either: (a) by an unlawful act; or (b) by an omission without lawful excuse to perform or observe any legal duty; or

26 26 Crimes Ordinance 1961 (c) by both combined; or (d) by causing that person by threats or fear of violence, or by deception, to do an act which causes that person's death; or (e) by wilfully frightening a child under the age of 14 years or sick person. (3) Culpable homicide is murder or manslaughter or infanticide. (4) Homicide that is not culpable is not an offence. 62. Death must be within a year and a day (1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death. (2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place. (3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased. (4) Where the death is in part caused by an unlawful act and in part of an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last. 63. Murder Subject to section 72 (relating to infanticide), culpable homicide is murder in each of the following cases: (a) if the offender means to cause the death of the person killed; (b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death and is reckless whether death ensues or not; (c) if the offender means to cause death, or being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed; (d) if the offender for any unlawful object does an act that he or she knows or ought to have known to be likely to cause death, and thereby kills any person, though he or she may have desired that

27 Crimes Ordinance his or her object should be effected without hurting anyone. 64. Further definition of murder (1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue: (a) if he or she means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury; (b) if he or she administers any stupefying or overpowering thing for either of the purposes aforesaid, and death ensues from the effects thereof; (c) if he or she by any means wilfully stops the breath of any person for either of the purposes aforesaid, and death ensues from such stopping of the breath. (2) The following are the offences referred to in subsection (1): treason, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible abduction, robbery, burglary, arson. 65. Manslaughter Culpable homicide not amounting to murder is manslaughter, save in the case of infanticide. 66. Penalty for murder Everyone who commits murder shall upon conviction be imprisoned for life. 67. Penalty for manslaughter Everyone who commits manslaughter is liable to imprisonment for life. 68. Attempted murder Everyone who attempts to commit murder is liable to imprisonment for life. 69. Conspiracy and inciting to murder Everyone is liable to imprisonment for a term not exceeding 10 years who: (a) conspires with any person to murder any person; or (b) incites any person to commit murder.

28 28 Crimes Ordinance Hastening death Everyone who hastens the death of any person from any disease or disorder from which that person is already suffering shall be deemed to have caused the death of that person. 71. Indirect cause of death Everyone whose act or omission results in the death of any person shall be deemed to have caused the death of that person, although the immediate cause of death is the act or omission of some other person or some other independent intervening event. 72. Infanticide (1) Where a woman causes the death of any child of hers within 12 months from the date of its birth in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed by reason of her not having fully recovered from the effect of childbirth or by reason of lactation or of any disorder consequent upon childbirth, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years. (2) Upon the trial of a woman for the murder or manslaughter of any child of hers under the age of 12 months, if there is evidence to support a verdict of infanticide as above, it shall be open to the jury to return such a verdict, and the accused shall be liable accordingly. 73. Killing unborn child (1) Everyone is liable to imprisonment for a term not exceeding 14 years who causes the death of any child that has not become a human being in such a manner that the person would have been guilty of murder if the child had become a human being. (2) Everyone is liable to imprisonment for a term not exceeding 5 years who causes the death of any child that has not become a human being in such a manner that he would have been guilty of manslaughter if the child had become a human being. (3) No one is guilty of any crime who before or during the birth of any child causes its death by means employed in good faith for the preservation of the life of the mother.